1 González ex rel González v. Reno, 86 F.Supp.2d 1167 (S.D. Fla.), aff’d, 212 F.3d 1338 (2000) [hereinafter González district court decision]. The Elián González case is discussed in Sean D. Murphy, Contemporary Practice of the United States, 94 AJIL 516 (2000).

2 467 U.S. 837 (1984).

3 González ex rel González v. Reno, 212 F.3d 1338, 1356 (11th Cir. 2000) [hereinafter González appeal].

4 Id. at 1349.

5 [Author’s note: the circuit court wrote:

Id. at 1352 n.21.]

6 Id. at 1349-50 (footnote omitted).

7 “Plaintiffs due process claim lacks merit and does not warrant extended discussion. Sec Jean v. Nelson, 727 F. 2d 957,968 (11th Cir. 1984) (en banc) (‘Aliens seeking admission to die United States... have no constitutional rights with regard to their applications . . . .’).” Id. at 1346 (citation omitted).

8 Id.

9 Id. at 1346 n.7. Indeed.

10 Cuban Refugees: Adjustment of Status, Pub. L. 89-732, 80 Stat 1161 (1966), amended by Pub. L. No. 94-571, 90 Stat. 2706 (1976) & Pub. L. No. 96-212, §203(i), 94 Stat. 108 (1980), reprinted in 8 U.S.C. §1255 note (1994) [hereinafter CAA].

11 For most of me last 34 years, “arrival” under die CAA was understood to mean “reaching U.S. waters.” Since 1994, however, when a loose set of U.S.-Cuba migration accords was reached, “arrival” has meant “arrival on shore.” See Joint Communiqué Between U.S. and Republic of Cuba, Sept. 9, 1994, 71 Interp. Rel. 1236 (Sept. 12,1994), 1994 WL 621517 (treaty). This move from a so-called wet-foot to a dry-foot requirement has led to violent encounters between U.S. Coast Guard vessels attempting to rescue (and possibly repatriate) U.S.-bound Cubans floundering at sea and die Cuban “rafters” (many of whom are seasoned professional smugglers) intent on reaching shore without being intercepted.

12 See infra note 21.

13 Two adults also survived. They have remained in the United States, been inspected, and become beneficiaries of the CAA.

14 The statute makes clear that parole is not entry into the country—”shall not be regarded as an admission of the alien”—and provides that the attorney general may offer it “temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit.” 8 U.S.C. §1182(d) (5). The alien is “still in theory of law at the boundary line and ha[s] gained no foothold in the United States.” Kaplan v. Tod, 267 U.S. 228, 230 (1925). Thus, from the outset and throughout, the González family in Miami was no more than an innkeeper at the whim of attorney general.

15 As early as December 15, 1999—well before the first Florida state court decision on the matter (see infra note 17)—the attorneys claiming to represent Elián submitted filings to the INS in which they claimed to represent Elian “by direct consent as well as through the consent of Lázaro González, Elián’s custodian, who is currently his legal guardian in the United States.” INS Form G-28, “Notice of Entry of Appearance as Attorney or Representative” (filed by attorneys of Lazaro González, Dec. 15,1999), quoted in Memorandum from Bo Cooper, General Counsel, INS, to Doris Meissner, Commissioner (January 3,2000) [hereinafter Cooper memorandum], in Defendants’ Notice of Filing Record and Exhibits, González district court decision, supra note 1, at 5,7 (No. 00-206-CIV-MOORE) [hereinafter Defendants’ Notice of Filing]. For trained immigration and family lawyers to make such a claim in an official filing is inexplicable. In this connection, there may have been a potential conflict of interest between the attorneys’ duties to Lazáro and those to Elián. See Cooper Memorandum, in Defendants’ Notice of Filing at 7.

16 The Miami Herald, for example—both in its editorials and in some of its news coverage—consistently referred to Elián throughout the entire seven-month period as being in the “custody” and not, for example, in the “care” of his great-uncle. Reporters for the Herald acknowledge that this editorial decision was made in order to bolster the cause of the Miami relatives. See, e.g., Andres Viglucci & Jay Weaver, Elian’s Relatives Have One Chance to Stave Off His Repatriation to Cuba, Miami Herald, Mar. 29, 2000 (Miami relatives “on the brink of losing custody of the boy to U.S. immigration authorities”).

17 On Jan. 10, 2000, Judge Rosalie Rodriguez of the family division of the Florida circuit court in Miami granted a temporary protective order purporting to take custody from Elián’s father, Juan Miguel González, and lodging it in the great-uncle, Lazáro, whom she incorrectly described as having been granted custody by the INS. See Temporary Protective Order, Gonzalez v. Gonzalez-Quintana, No.00-00479-FC-29 (Fla. 11th Cir. Ct. Jan. 10, 2000) (granting “Petitioner’s Verified Emergency Ex-Parte Petition for Interim Order”). That decision was roundly criticized by the family and immigration bar. Judge Bailey, chief judge of the family court, assumed the case after judge Rodriguez was forced to withdraw because of the not unrelated campaign-finance indictment pending against her. Judge Bailey dismissed the custody case with prejudice and a stern rebuke, explaining that the state court was preempted and had no jurisdiction, and that the petitioner, Lazáro, in any event lacked standing to sue under the Florida statute upon which Judge Rodriguez had rested her faulty ruling. See In re Lazaro Gonzalez, No. 00-00479- FC-28 (Fla. 11th Cir. Ct. Apr. 13, 2000).

In the subsequent González district court decision, supra note 1, at 1171 (emphasis added), Judge Moore was careful to write that the INS had granted Elián “a temporary deferral of his inspection and placed him in the care of his paternal great uncle.”

18 González district court decision, supra note 1, at 1171.

19 The United States and Cuba, which do not have diplomatic relations with one another, maintain communication through interests sections that are organized under the auspices of the Swiss Embassies in Havana and Washington, D.C.

20 The timing of the father’s letter is explained more clearly in the González district court decision, supra note 1, at 1171, than in the González appeal, supra note 3, at 1345.

21 González district court decision, supra note 1, at 1171. Consistent with international agreements—in particular, Article 33 of the 1951 UN Convention on the Status of Refugees, July 28, 1951, 189 UNTS 150—U.S. law defines an asylee as a refugee who has landed in or at the border of the United States and who can document personally entertaining a “well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. §1101 (a) (42) (A). The seminal case remains INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).

22 See González district court decision, supra note 1, at 1171.

23 See supra note 17. In a letter to the parties dated January 12, Attorney General Janet Reno made clear that Elian, as a parolee, was in her exclusive custody, that neither she nor the INS was, or could be, a party to a local family court decision such as the one just issued, and that the decision had absolutely no effect on the process under way. This same letter also effectively invited the family in Miami to litigate the issues in federal court. In part, this letter served to reiterate the federal monopoly over immigration matters, but it was obviously construed by the family as an offer to litigate what was, in fact, a closed matter. See Letter from Janet Reno, U.S. Attorney General, to Spencer Eig, Roger Bernstein, and Linda Osberg-Braun (Jan. 12, 2000), in Defendants’ Notice of Filing, supra note 15, at 25 [hereinafter Reno letter], excerpted in González district court decision, supra note 1, at 1174-75. See infra note 26 and accompanying text.

24 See González district court decision, supra note 1, at 1175.

25 González appeal, supra note 3, at 1345; González district court decision, supra note 1, at 1172.

26 See Declaration of Silma L. Dimmel [lead INS interviewer], m Defendants’ Notice of Filing, supra note 15, at 229; González district court decision, supra note 1, at 1172-73.

27 See Doris Meissner, INS Decision in the Elian Gonzalez Case (Jan. 5, 2000) <http://www.ins.usdoj.gov/graphics/publicaffairs/statements/Elian.htm>.

28 Cooper memorandum supra note 15, in Defendants’ Notice of Filing, supra note 15, at 17.

29 Id.; see González district court decision, supra note 1, at 1173.

30 See González district court decision, supra note 1, at 1173-75.

31 See id. at 1174-75.

32 Cooper memorandum, supra note 15, in Defendants’ Notice of Filing, supra note 15, at 17. The INS found both Cuban and Florida law clear on the question of assessing a father’s authority to speak for a young child, even one born out of wedlock. In re Hosseinian, Interim Decision 3030 (B.I.A. 1987), confirmed that each relationship is to be assessed under the law of the jurisdiction where it arose.

Among the INS concerns was the potential harm being done to Juan Miguel by the protracted separation from his son. Since the INS found no basis to question the father’s parental rights, prolonged separation of father and son might well constitute the kind of interference with parental rights that may not be undertaken absent clear and convincing evidence of a basis to terminate those rights. See Cooper memorandum, supra note 15, in Defendants’ Notice of Filing, supra note 15, at 13 (citing Santosky v. Kramer, 455 U.S. 745, 753 (1982) (“family life is a fundamental liberty interest protected by the Fourteenth Amendment”)).

All aliens present in the United States enjoy the right to apply for asylum. Yet, in the case of children, parents have the right to “participate in all immigration matters regarding their child.” Id. at 12 (quoting Polovchak v. Meese, 774 F.2d 731 (7th Cir. 1985)). At age six, Elián was well below die minimum age at which he might be “competent to affirm” the contents of his asylum application. Id. at 14. Therefore, following its long-standing INS Children’s Guidelines, as well as the guidelines set forth by the Office of the United Nations High Commissioner for Refugees in its Handbook on Procedures and Criteria for Determining Refugee Status Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (2d ed. 1992), INS adjudicators “will have to evaluate the claim based on all objective evidence available,” id. at para. 219. See Cooper memorandum, supra note 15, in Defendants’ Notice of Filing, supra note 15, at 14. In this case the INS found no objective evidence to support the claim that Elian would face persecution in Cuba.

33 On January 5, 2000, a detailed letter explaining its process and decision was sent by INS Executive Associate Commissioner for Field Operations Michael Pearson to attorneys Roger Bernstein and Spencer Eig. On January 6, James Burzynski, Director of the INS’s Texas Service Center, returned the actual applications to lead attorney Roger Bernstein together with a summary letter and a copy of Pearson’s letter. See Complaint, González district court decision, supra note 1, Ex. A (No. 00-206-CIV-MOORE); González district court decision, supra note 1, at 1173-74.

34 See Reno letter, supra note 23. Also on January 12, the third asylum application, signed by Lazáro alone, was submitted. According to the Miami attorneys, this new application was justified on the basis of Judge Rodriguez’s “temporary protective order” giving Lazáro custody over Elian. See supra notes 17, 23. This third and last application was rejected and returned upon receipt. See Letter from James Burzynski, Director of INS Texas Service Center, to Spencer Eig, Roger Bernstein, and Linda Osberg-Braun (Jan. 13,2000), in Defendants’ Notice of Filing, supra note 15, at 317; González district court decision, supra note 1, at 1175.

35 González district court decision, supra note 1, at 1175. The case was initially assigned randomly to Senior Judge James King, who recused himself because of a conflict involving his son and the plaintiffs. The case was then randomly reassigned to Senior Judge William Hoeveler, who suffered a stroke shortly after a second preliminary hearing. The chief judge of the district then held the case for one additional hearing, after which it was assigned to Judge K Michael Moore, who rendered the judgment in the case. Id. at 1170 n.l. The assignment of judges in the state court had, in the interim, come under skeptical scrutiny locally.

36 See id. at 1175-76.

37 Id. at 1176.

38 See id. at 1176-79 (citing and quoting (at 1176) Board of Governors of the Fed. Reserve Sys. v. McCorp Fin., Inc., 502 U.S. 32, 44 (1991), and also (at 1177-78) Reno v. Arab-American Anti-Discrimination Comm., 525 U.S. 471 (1999)).

39 Id. at 1184.

40 The Eleventh Circuit’s interpretation of Fed. R. Civ. P. 17(c) “next friend” status is found in Ford v. Haley, 195 F.3d 603, 624 (11th Cir. 1999). The district court was strained to find justification for a next friend when a competent parent opposed such recognition, and reached back to Bank of the United States v. Ritchie, 33 U.S. 128, 144 (1834). See González district court decision, supra note 1, at 1185.

41 González district court decision, supra note 1, at 1188 (quoting Landon v. Plasencia, 459 U.S. 21, 32 (1982)). The Eleventh Circuit has been one of the most adamant that “a constitutionally protected interest cannot arise from relief that the executive exercises” on a discretionary basis, Tefel v. Reno, 180 F.3d 1286, 1300 (11th Cir. 1999), and that admission issues “are not within the protection of the Fifth Amendment,” Jean v. Nelson, 727 F.2d 957, 968 (11th Cir. 1984) (quoting Bridges v. Wixon, 326 U.S. 135 (1945)).

42 See González appeal, supra note 3, at 1346-47.

43 González district court decision, supra note 1, at 1188. The court seemed to draw its particular formulation from 8 U.S.C. §1252(b) (4) (D), which provides that “the Attorney General’s discretionary judgment whether to grant relief under [Section 1158(a), the asylum provisions in Section 208 of the Immigration and Naturalization Act] shall be conclusive unless manifestly contrary to law and an abuse of discretion.” Id. at 1189.

44 See supra note 43.

45 See González district court decision, supra note 1, at 1190; González appeal, supra note 3, at 1348-49 (quoting Chevron U.S.A. Inc. v. Natural Resources Def. Council, Inc., 467 U.S. 837 (1984)). Both courts also cited and quoted INS v. Aguirre-Aguirre, 526 U.S. 415 (1999), with the district court, supra note 1, at 1191, quoting the position that “judicial deference to the Executive Branch is especially appropriate in the immigration context [‘] where officials exercise especially sensitive political functions that implicate questions of foreign relations, [‘]” Aguirre-Aguirre, 526 U.S. at 425.

46 González district court decision, supra note 1, at 1190 (quoting Chevron, 467 U.S. at 842-43).

47 See supra notes 43-46 and accompanying text.

48 González appeal, supra note 3, at 1351. The court added in a footnote, id. atn.18, that, “we do not think that the INS, as a matter of law, must individually assess each child’s mental capacity” rather than looking at his or her age.

49 Id. at 1351.

50 Id. at 1352.

51 Id. Sample circumstances that would bring about this state of affairs are noted in the court’s footnote 21, supra note 5.

52 González appeal, supra note 3, at 1353. The increasingly antique phrase “communist-totalitarian” was the court’s own. The court cited U.S. Dept. of State’s Country Reports on Human Rights Practices for 1999 (Joint Comm. Print 2000), obtainable from <http://www.state.gov/www/global/human_rights/99hrp_index.html>, to the effect that the Cuban government in 1999 continued “to violate fundamental civil and political rights of its citizens.” González appeal, supra note 3, at 1353.

53 González appeal, supra note 3, at 1353. It is not clear whether this comment was framed to emphasize that the case is about judicial deference or whether it reflects, instead, the court’s or Judge Edmondson’s own view.

54 Id.

55 See id. (citing United States v. Curtiss-Wright Export Co., 299 U.S. 304 (1936)). In this connection, the court seemed to worry that a per se rule that “no parent living in a totalitarian state has sufficient liberty to represent and to serve the true, best interests of his own child in the United States”—exactly the position of the plaintiffs and the Cuban-American exile leadership—would cause chaos in the area of foreign affairs. Id at 1353-54.

56 See id. at 1354.

57 See id. at 1354-55.

58 Id. at 1355 n.24. Though Elián might face “education and indoctrination” in Cuba, those things were not “synonymous with ‘persecution,’” id. at 1355, see id. at 1355-56. “The INS’s estimate” of the asylum applications—as “not strong on their merits—is not clearly inaccurate.” Id.

59 Id. at 1356.

60 See supra note 14 and accompanying text.

61 In successfully applying for a search and seizure warrant under Rule 41 (b) of the Federal Rules of Criminal Procedure, Mary Rodriguez, an INS senior special agent, affirmed on behalf of the government that Elián, his parole having been revoked, was now also being “unlawfully restrained” at Lazáro’s home. Specifically, her affidavit swore that:

Affidavit of Mary A. Rodriguez 5-7, App. to Robert L. Dubé (Magis. J., S.D. Fla.) for Search and Seizure Warrant (Apr. 21,2000).

62 After his arrival in the United States, Juan Miguel had been permitted to become an intervenor in the litigation then before the circuit court.

63 See, e.g., Bragg, Rick, “Stand over Cuban Highlights a Virtual Secession of Miami,” N.Y. Times, Apr. 1, 2000, at Al Google Scholar.